Another California City Allowed Police To Destroy Misconduct Records Ahead Of New Transparency Law

from the thanks-for-the-help,-assholes dept

California law enforcement agencies knew the reckoning was coming. A new law took effect at the beginning of this year, opening up records of police misconduct and use of force to the public for the first time. Some decided to engage in preemptive legal challenges. Some quietly complied. Some decided to ignore the law's author and pretend it didn't apply to any record created before 2019.

A couple of law enforcement agencies got really proactive and just started destroying records before the public could get its hands on them. The Inglewood PD got the green light from the city government to destroy hundreds of records subject to the new transparency law. The city and the PD claimed this was just regular, periodic housecleaning. But the timing seemed ultra-suspicious, given that it happened only days before the law took effect. Not that it matters. The records are gone and all the bad press in the world isn't going to bring them back.

KQED brings us some more bad press targeting a police department. And, again, it's not going to unshred the destroyed records. But it is important to call out the hugely disingenuous actions of the Fremont Police Department, which chose to greet the impending transparency with a final blast of opacity.

Last year, while state lawmakers were considering a landmark bill to open up previously confidential police misconduct records to the public, the city of Fremont quietly destroyed a large archive of papers, cassettes and computer files documenting over four decades of internal affairs investigations and citizen complaints. It is not known if the destroyed records covered officer-involved shootings.

Last fall, Fremont’s City Council also changed the Police Department’s records retention policy, reducing the amount of time that investigative files of officer-involved shootings must be saved from 25 years to 10.

Proving this resistance to transparency is not just a Fremont PD thing, the city has refused to comment on its approval of this bullshit move. The purge began almost as soon as the law was passed. The bill headed for the governor's desk last August. Governor Jerry Brown signed it into law in September. As soon as it became clear the bill had a good chance of becoming law, the Fremont PD began destroying years of misconduct records it apparently felt were worth retaining right up until the point the public had a chance to obtain them.

Between June and December 2018, Fremont destroyed six batches of records covering investigations of police misconduct, citizen complaints and disciplinary files spanning 1971 to 2016.

KQED discovered this mass memory-holing by filing a public records request for the list of documents considered responsive to requests under the new law. The long list of destroyed files includes records of two-year investigation that resulted in eleven orders to impose discipline on a single officer and 32 years of Internal Affairs files. It also includes 12 years of files related to officer-involved shootings.

And it did this all with the city's help. Last year, the council granted the police department's request to change its retention guidelines, ensuring that fewer documents will be retained and, eventually, handed over to the public.

It's one thing when a police department acts in its own self-interest by purging records that make it look less than stellar. It's quite another when a city government helps the PD fuck the public out of what now rightfully belongs to them.

Filed Under: california, transparency


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  • icon
    That One Guy (profile), 1 Apr 2019 @ 1:17pm

    Time to apply court standards for destroyed evidence...

    ... and assume that everyone in the department, top to bottom, is rotten and corrupt to the core, with the destroyed evidence containing nothing but damning information that would have proven that beyond a doubt. Likewise with the city council, every last one of them should be assumed to be, and treated as, completely corrupt and uninterested in serving the public, and thereby worthy of their job(or any job that involves serving the public).

    If actions like this do have one upside it's that it allows people in the state to see which departments are just moderately corrupt, and which ones are corrupt beyond saving and need to be fired and replaced wholesale(or if that's not possible, seen and treated as yet another dangerous gang, something to avoid if at all possible).

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Apr 2019 @ 1:57pm

      Re: Time to apply court standards for destroyed evidence...

      I would also request document that they are required to have kept and when they refuse to turn them over, sue them for whatever the maximum you can get away with. They will have to pay it since they ignored the legal need to hold onto that data. I would love to get access to their computer systems and see what we could retrieve from their drives.

      reply to this | link to this | view in chronology ]

      • icon
        Bergman (profile), 1 Apr 2019 @ 2:24pm

        Re: Re: Time to apply court standards for destroyed evidence...

        Exactly. If you are given notice of a lawsuit or of an investigation, immediately destroying all of your records before the subpoena can arrive has very, very poor results in court.

        reply to this | link to this | view in chronology ]

      • icon
        Bluehills (profile), 1 Apr 2019 @ 2:38pm

        Re: Re: Time to apply court standards for destroyed evidence...

        There is no indication documents were illegally destroyed. The timelines in the story suggest they are maintaining them for the minimum time required by California law. There is no actionable duty to maintain them for a longer time except as to those specific files meeting litigation hold or destruction of evidence criteria.

        reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 1 Apr 2019 @ 2:53pm

          Like a billion $ bouncy-ball, no-one's buying that.

          Last year, while state lawmakers were considering a landmark bill to open up previously confidential police misconduct records to the public, the city of Fremont quietly destroyed a large archive of papers, cassettes and computer files documenting over four decades of internal affairs investigations and citizen complaints. It is not known if the destroyed records covered officer-involved shootings.

          Four decades. They had no problem keeping records going back forty years before a a law was considered that would allow the public access, so don't even try to pretend that this was just 'routine destruction of obsolete records', because you(and they) aren't fooling anyone.

          That it may not technically be illegal(I suspect that if anyone without a badge did anything similar they'd have investigation/prosecutors calling for their head) doesn't make the intent behind destroying the records any less blatantly obvious, and it has nothing to do with just clearing away old records to make space.

          reply to this | link to this | view in chronology ]

          • icon
            Bluehills (profile), 1 Apr 2019 @ 3:17pm

            Re: Like a billion $ bouncy-ball, no-one's buying that.

            You seem to be assuming that I have formed some opinion you disagree with. I was merely commenting on the proposal to sue for a failure to maintain the records for longer than is legally required.

            reply to this | link to this | view in chronology ]

            • icon
              That One Guy (profile), 1 Apr 2019 @ 3:46pm

              Re: Re: Like a billion $ bouncy-ball, no-one's buying that.

              Hence the second part of my comment, pointing out that while it may not be illegal to destroy the records, it sure is hell is telling of trying to hide damning evidence.

              The timelines in the story suggest they are maintaining them for the minimum time required by California law.

              And this was the confusing line in your comment that led me to assume you were supporting them, because it's not only not true(unless california 'just so happens' to have a forty-year records-keeping law that 'just so happened' to lapse at just the right/wrong time...), but certainly reads like a defense of what they were doing as spinning it as just routine records destruction rather than deliberate obstruction of possible requests from the public. If that's not what you intended though, will just chalk it up to a bit of confusion.

              reply to this | link to this | view in chronology ]

              • icon
                Bluehills (profile), 1 Apr 2019 @ 3:58pm

                Re: Re: Re: Like a billion $ bouncy-ball, no-one's buying that.

                I was referring to the fact that even with the destruction noted, it does not appear that they are destroying records sooner than permitted by state law.

                reply to this | link to this | view in chronology ]

          • icon
            Bamboo Harvester (profile), 1 Apr 2019 @ 3:51pm

            Re: Like a billion $ bouncy-ball, no-one's buying that.

            Don't overlook the math there.

            They applied to have the retention period lowered to 10 years from the original 25 years.

            Then shredded FORTY years of records.

            Which means they over-held some records for 15 years longer than originally required at a minimum - it's not clear if the four decades of records referred to the past forty years or forty years prior to the 25 or 10 year retention periods. They may still have had records from 65 years back.

            reply to this | link to this | view in chronology ]

            • icon
              Bluehills (profile), 1 Apr 2019 @ 4:14pm

              Re: Re: Like a billion $ bouncy-ball, no-one's buying that.

              If they are like many public agencies,there was no systematic destruction of old files though the retention policy allowed for it. Instead they just stack up in boxes in the basement or off site storage.

              reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 1 Apr 2019 @ 4:36pm

            Re: Like a billion $ bouncy-ball, no-one's buying that.

            That it may not technically be illegal... doesn't make the intent behind destroying the records any less blatantly obvious

            When were cops ever known for subtlety? They'll ask lawmakers to make it illegal to wear masks in public, then cover up their faces and assault protesters... in front of hundreds of cops who somehow never arrest them.

            It's not technically illegal for us to lay cops off when they haven't technically broken any law. We could say they're all shitcanned for poor customer service, if we had the political will. Of course, there's a second part of that plan I've yet to figure out.

            reply to this | link to this | view in chronology ]

  • identicon
    Glenn, 1 Apr 2019 @ 2:24pm

    I guess the only thing wrong with the new law is that it didn't impose criminal penalties for the destruction of public records.

    The second biggest thing wrong with bad cops is that [supposedly] good cops try to protect the bad ones from fair and just legal prosecution, which simply makes those "good" cops actually bad cops, too. (You're known by the company you keep.)

    There's another word for "bad cop". That word is "criminal".

    reply to this | link to this | view in chronology ]

    • icon
      Bluehills (profile), 1 Apr 2019 @ 2:39pm

      Re:

      There is no indication they destroyed documents they were legally required to keep.

      reply to this | link to this | view in chronology ]

      • icon
        Anonymous Anonymous Coward (profile), 1 Apr 2019 @ 3:19pm

        Re: Re:

        What is the statute of limitations for murder? I am not suggesting that any of the information destroyed was evidence of murder, but then maybe there was evidence of a murder has just not been charged...yet.

        reply to this | link to this | view in chronology ]

        • icon
          Bluehills (profile), 1 Apr 2019 @ 3:47pm

          Re: Re: Re:

          That would certainly be an argument to support legislative action requiring a longer retention period for some records.

          reply to this | link to this | view in chronology ]

          • icon
            Anonymous Anonymous Coward (profile), 1 Apr 2019 @ 3:53pm

            Re: Re: Re: Re:

            But not irresponsible action by those that hold those records who just happened to get rid of all the records they could, legally, just as this bill was being discussed by the state legislature? You seem to think that reading motives into that timing is improper. Why is that?

            reply to this | link to this | view in chronology ]

            • icon
              Bluehills (profile), 1 Apr 2019 @ 4:02pm

              Re: Re: Re: Re: Re:

              I am not commenting on motive at all, as that generally does not affect the analysis as to whether a legal duty exists or has been complied with.

              reply to this | link to this | view in chronology ]

  • identicon
    Whoever, 1 Apr 2019 @ 2:53pm

    Freomnt, CA: claims transparency, but

    Here is a killing from just 2 years ago, in which officers broke department policies, resulting in the death of an innocent person, yet there are "no records which are not exempt from disclosure as public records".

    https://www.eastbayexpress.com/SevenDays/archives/2019/01/11/fremont-withholds-records-of-fatal-pol ice-shooting-of-pregnant-teenager-despite-new-transparency-laws

    Meanwhile, in other news, Fremont police claim to be transparent:
    https://www.fremontpolice.org/index.aspx?nid=414

    reply to this | link to this | view in chronology ]

    • icon
      Bluehills (profile), 1 Apr 2019 @ 3:42pm

      Re: Freomnt, CA: claims transparency, but

      The city’s response is problematic for a number of reasons. It gives the litigation exemption a much broader reading than case law allows. It also fails to identify the specific exemptions relied on as to each request. If there is a statutory basis for delay, it doesn’t provide the specific information required to invoke the delay. It doesn’t look like the requesterfiled an enforcement action.

      reply to this | link to this | view in chronology ]

      • icon
        Anonymous Anonymous Coward (profile), 1 Apr 2019 @ 3:48pm

        Re: Re: Freomnt, CA: claims transparency, but

        I find it interesting that all of your now 23 comments are on this subject. They all seem to be against this law being retroactive or telling us why the unusual destruction of public records is OK.

        Tell us, which department/union are you employed by?

        reply to this | link to this | view in chronology ]

        • icon
          Bluehills (profile), 1 Apr 2019 @ 4:22pm

          Re: Re: Re: Freomnt, CA: claims transparency, but

          It is a subject of interest because I represent parties who litigate on both sides, and also use requests in other types of litigation. I am not giving any opinion as to whether the destruction is moral or ethical. The relevant issue to me is whether it is legal or not. The same as to whether withholding records created before 2019 is legal. Generally the agencies I deal with take the position that withholding such records is not permitted, and I agree with their legal analysis.

          reply to this | link to this | view in chronology ]

          • icon
            Anonymous Anonymous Coward (profile), 1 Apr 2019 @ 5:20pm

            Re: Re: Re: Re: Freomnt, CA: claims transparency, but

            "It is a subject of interest because I represent parties who litigate on both sides..."

            Since a lobbyist would not represent both sides, should we assume you are a lawyer? If so, could we have your opinion, as a lawyer, as to whether it is legal to destroy records that might become part of a future litigation, as well as who it is that decides whether some record might or might not be part of a future litigation, under California law of course? Are there any other statute of limitations that might be impacted? I am not seeking actual legal advice, just an opinion.

            While you might not be concerned with whether a destruction of potential evidence is moral or ethical, for the purpose of the discussion here, we are.

            reply to this | link to this | view in chronology ]

            • icon
              Bluehills (profile), 1 Apr 2019 @ 6:12pm

              Re: Re: Re: Re: Re: Freomnt, CA: claims transparency, but

              Generally it is the holder of any record who decides whether to retain or destroy any record, subject to the applicable laws dealing generally with recordretention or potential evidence. Legal standards vary, but generally there is no obligation to retain documents as potential evidence unless you are on notice that the record may be needed as evidence in some reasonably anticipated litigation in the absence of a law requiring retention of the specific type of record. In California, the statute of limitations for personal injury or wrongful death is generally two years so civil litigation would not generally be anticipated after that. If a court or prosecutor decides the holder violated a legal duty under the specific facts then it may award sanctions or instigate criminal proceedings.

              In my view, the legal answer to records being destroyed too quickly is through legislative determination of the minimum retention period as the effect is the same whether they are regularly purged to save storage costs or purged to avoid public scrutiny.

              reply to this | link to this | view in chronology ]

  • identicon
    bob, 1 Apr 2019 @ 3:04pm

    author is wrong

    It's quite another when a city government helps the PD fuck the public out of what now rightfully belongs to them.

    The information already belonged to the public. The police and city were just trusted to hold onto it for the public. Too bad that trust was misplaced.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    John Smith, 1 Apr 2019 @ 5:41pm

    And? I don't see a problem here, aside from pirates throwing yet another tantrum.

    reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 1 Apr 2019 @ 5:45pm

    Reforming law enforcement

    It's pretty evident the corruption and antagonism against the public is epidemic. We won't be able to reform law enforcement.

    We're going to have to replace the whole system. If we can demonstrate to a tribunal that the policies of law enforcement against the public were systemic and pervasive, that might be enough to charge everyone involved with crimes against humanity.

    reply to this | link to this | view in chronology ]

  • icon
    Bill Poser (profile), 1 Apr 2019 @ 8:09pm

    I'm surprised that authors of the law providing access did not anticipate this tactic and include in the bill a provision forbidding the destruction of records.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 1 Apr 2019 @ 8:15pm

    And every defense lawyer danced a jig...

    We can not be sure if this evidence was correctly gathered by upstanding people... the PD decided to destroy all the records of complaints against the officers rather than allow us an opportunity to see if this officer testifying has ever been reprimanded for violating chain of evidence, beating on citizens, or any other reporting.
    What were they trying to hide?

    They want you to trust and believe them, but then destroy all the records trying to hide reports & outcomes. Does that sound like the actions of innocent public servants charged with protecting and serving or like a gang member trying to hide his history of arrests & misconduct??

    reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 2 Apr 2019 @ 12:32am

      Juries and judges love law enforcement officers...

      ...and they hate suspects.

      It takes video of police officers doing something grotesque and despicable to turn a court on them, and even then one guy will hang the jury out of principle (of respect for authority at all costs, I assume.)

      The reason we see police making such awful cases in the courts is because most of the time that is all that is necessary to lock someone into prison for decades and seize all their stuff.

      reply to this | link to this | view in chronology ]

  • icon
    Ed (profile), 2 Apr 2019 @ 7:44am

    Again...

    I keep repeating this, but it remains relative: You cannot trust a LEO. Ever.

    reply to this | link to this | view in chronology ]


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